National Anti-Corruption Commission (NACC)

What kind of matters does NACC investigate?

The NACC investigates allegations which involve serious or systemic corruption.

While this term is not defined, it is intended to apply to corrupt conduct that is not trivial. The Commissioner of NACC will consider the degree and seriousness of the alleged corrupt conduct. For example, consideration is given to the maximum penalty of any criminal offence identified, the level of loss or gain to an individual or organisation, and the role held by the person whose conduct is being scrutinised.

Conduct will be considered systemic if it is widespread, demonstrates a pattern or is otherwise embedded into the structure or culture of the organisation. Also, if there are identified systemic vulnerabilities that allow corruption to take place. It does not necessarily need to involve more than one organisation or more than one individual for it to be considered systemic.

Corruption in this setting includes:

• The conduct of a person that adversely affects, or that could adversely affect the honest or impartial exercise of any public official’s powers or performance as a public official
• Conduct of a public official that involves a breach of public trust
• Conduct of a public official that involves an abuse of the person’s office as a public official
• Conduct of a public official (current or former) that involves the misuse of documents or information they acquired in their capacity as a public official.

An illustration of the type of conduct that could be investigated is:

• Improper execution of the tender process
• Using your position to influence others – for example, influencing the appointment of Government board members
• Accessing an official database to search for information about a colleague or other person, unrelated to official business
• Dishonest modification of data held in government databases
• Offering bribes of inducement to government officials
• Exerting pressure on a public official to provide inside information or make a decision that favours you

What happens when a matter is referred to the NACC?

The NACC can receive a complaint or disclosure from any member of the community.

There is also a mandatory referral obligation placed on people who are Public Interest Disclosure (PID) officers or heads of agencies. PID officers are staff members responsible for investigating and allocating internal disclosures received. If the disclosure involves or could involve serious or systemic corrupt conduct by a person that is or was working at the agency, they are obliged to report the matter to the NACC.

Upon receiving information about a corruption issue, the NACC will conduct a preliminary investigation to better understand it and determine how to deal with it. If the Commissioner believes the issue could invoke the jurisdiction of the NACC, it can conduct a more thorough investigation. The Commissioner may refer the matter to the Commonwealth agency that the issue arose from for them to investigate, or to another agency that is best equipped to deal with the issue. The Commissioner may take no action or cease acting if they consider that the matter does not involve serious or systemic corruption.

The NACC’s investigative powers

The NACC have been given broad and very far-reaching powers to investigate corruption.

They have the power to:

• Compel you to answer questions at private examination (and in some case a public examination)
• Compel you to produce documents or things
• Enter and search premises and vehicles – including the entering and search of Commonwealth agencies without a warrant
• Use surveillance and listening devices
• Apply for freezing orders on bank accounts held
• Access bank account transaction information
• Utilise undercover law enforcement operatives
• Require a Commonwealth agency to stop a specific action

There are some limitations on the types of places that NACC officers can search without a warrant, including inside parliamentary offices and departments at Parliament House, premises in the High Court of Australia or a Federal Court, and premises occupied by the ABC and SBS. They are permitted to search these places with a warrant or by consent.

Your rights and obligations

If you have received a summons to either produce information or a document or to attend a hearing to give evidence, you must comply. It is an offence to fail to do so. The obligation to provide answers extends to answers which would ordinarily entitle you to claim a privilege. For example, refusing to answer on the grounds that the answer may tend to incriminate you in criminal offending, or the response falls under legal professional privilege or is a breach of a secrecy obligation.

Significantly, any incriminating information provided during the hearing cannot be used against you in any subsequent criminal or civil proceedings. This represents an important safeguard.

You can only refuse to provide evidence in a few very specific situations, including if you are a journalist and the answer will reveal legal advice you received as part of your work as a journalist.

The NACC are keen to encourage people to provide information to them. As such, there are several protections available to people who have provided evidence or information. This can involve immunity from criminal or civil liability arising from disclosing the information. This indemnity does not extend to liability relating to their own involvement in the corrupt conduct.

Outcomes of NACC investigations

Once a NACC investigation is completed, the NACC will prepare a report setting out their findings and recommendations. If the report is going to make adverse findings or recommendations about a person or agency, they must be given an opportunity to respond before the report is finalised. Once finalised, the report is provided to the Attorney-General.

If the Commissioner finds evidence of criminal offending, that information can be provided to the police or the Director of Public Prosecutions.

It is open to the Commissioner to make any recommendation considered appropriate to address the identified issues. They can include recommendations to put in place measures to reinforce and improve the weak policies, procedures and practices that allowed the corruption to happen, or to terminate the employment of a particular person.

There are serious consequences that can flow from adverse findings. It is important that the response provided to the NACC adequately conveys your position and provides a strong defence or explanation. Doogue + George Defence Lawyers are skilled at drafting responses to Commissions and will give you the best prospect of a favourable outcome.

The NACC investigation report in whole or in part will be published, if they are satisfied that it is in the public interest to do so. Importantly, where no corruption has been found to have taken place, to limit the reputational damage to people who have been investigated or have otherwise given evidence at a hearing, the Commissioner must include a statement to that effect in the report.

It is possible to seek a review of the findings. A review needs to be sought within 3 months of the original decision and should clearly state the reason the review is being pursued along with any relevant matters that support your position.

Relevant legislation

National Anti-Corruption Commission Act 2022 

If you have been contacted by the NACC, it is important that you get immediate advice from an expert lawyer. Doogue + George Defence lawyers are highly skilled in this area.

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You can read more about the NACC here.